Dendrobium Coal Pty Ltd v McGoldrick

Court of Appeal (NSW)|2023-08-01|Before: Meagher JA, Payne JA, Adamson JA, Garling J

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Judgment

MEAGHER JA: I agree with the reasons and proposed orders of Payne JA.
PAYNE JA: The appellant, Dendrobium Coal Pty Ltd, challenges the primary judge's assessment of damages due to the respondent, Mr Troy McGoldrick, as a result of an injury to Mr McGoldrick's leg in a mining accident: McGoldrick v Dendrobium Coal Pty Ltd [2022] NSWSC 1341.
Mr McGoldrick's leg was injured in 2013. He began these proceedings in June 2016. The appellant admitted liability. The sole issue before the primary judge was the assessment of damages. Before the hearing, the parties agreed damages for past out-of-pocket expenses, past domestic assistance, past equipment needs and past loss of earning capacity. The only heads of damage in dispute were: 1. Non-economic loss; 2. Future economic loss; 3. Future treatment costs and future domestic assistance.
The primary judge concluded that damages were payable as follows (including those agreed by the parties): Item $ Buffer on future earning capacity $350,000.00 Lost superannuation on future earning capacity $42,000.00 Non-economic loss $174,758.00 Future surgery $7,500.00 Fox v Wood damages $4,896.16 Past medical expenses $57,306.84 Additional medical expenses (paid by plaintiff) $12,230.86 Future out-of-pocket expenses $30,000.00 Past domestic assistance $15,000.00 Future domestic assistance $200,000.00 Home modifications $5,000.00 Verdict Total $898,691.86

The findings of fact made by the primary judge are set out in what follows. As I will explain, the appellant did not file any statement challenging any of those factual findings, as required by Uniform Civil Procedure Rules 2005 (NSW) r 51.36(2). The importance of compliance with that requirement has been emphasised by this Court on numerous occasions: Massoud v Nationwide News Pty Ltd (2022) 109 NSWLR 468; [2022] NSWCA 150 at [139] per Leeming JA; Magann v The Trustees of the Roman Catholic Church for the Diocese of Parramatta [2020] NSWCA 167 at [52]-[56] per Bell P; Best v Rosamond [2020] NSWCA 90 at [21] per Payne JA. The reason the Court requires compliance with r 51.36(2) is obvious. In a case such as the present, whilst various conclusions reached by the primary judge in relation to damages are challenged, the appellant has not, or has not clearly, challenged any of the facts upon which those conclusions are based. Where, as here, House v The King (1936) 55 CLR 499; [1936] HCA 40 error in the assessment of damages is alleged, the failure to identify the facts which are challenged creates a serious hurdle for an appellant to overcome.

The accident

The respondent has tertiary qualifications in mining engineering. In 2011, he was one of six mining engineer graduates chosen to take part in BHP Billiton Illawarra Coal's graduate program. In 2012, BHP Billiton was restructured and ownership of its three Illawarra coal mines passed to South 32 Ltd. The appellant was the respondent's employer when the accident occurred. At some point after the accident, he became employed directly by South 32.
In August 2012, the respondent began a year-long rotation at Dendrobium Mine, west of Wollongong. On 24 June 2013, the respondent was working underground at Dendrobium, when a rib of coal above him collapsed, producing a cascade of loose coal and rock. About 30 tonnes of material fell on the respondent, burying him to his waist. He suffered immediate pain and serious injuries.
The appellant admitted liability in negligence and accepted the collapse had caused the respondent's injuries, loss and damage. South 32's insurance company, Coal Mines Insurance, funded the respondent's treatment until the first half of 2015, when it refused further payments. It did so apparently because it concluded the respondent's injuries were permanent.

The left foot injury

The respondent was treated at Wollongong Hospital. Investigations, including CT scans, revealed a "left foot crush injury" with multiple fractures. There were also significant soft tissue injuries. The soft tissue injury and consequent blisters required debridement in the operating theatre, and a xenograft to the dorsum of the foot. These soft tissue injuries appear to have caused no long-lasting damage.
The respondent's orthopaedic injuries were more substantial. They mostly affected his left foot. Three weeks after the injury, he was seen by a specialist orthopaedic foot and ankle surgeon, Dr Cadden. Dr Cadden noted "fractures through the left mid-foot region", without "gross displacement". Dr Cadden prescribed a Vacocast boot to immobilise the injured area and promote healing. Dr Cadden did not recommend surgery.

The respondent's evidence

The primary judge accepted the respondent's evidence as credible, reliable and accurate. His Honour found that: 1. For about two years after the injury, the respondent worked with exercise physiologists and doctors to regain mobility. He worked part time for some of this period, in surface-based roles at Appin Mine, another mine owned by South 32. 2. The respondent was determined to return to underground work. To do so, he had to prove he could escape the mine in an "Egress Walk", which involved walking for 15 km underground over uneven surface while wearing mining gear. In late 2014, the respondent was unable to finish this walk. He found walking very painful, especially on the uneven ground of a mine. 3. In July 2014, South 32 told the respondent it no longer had a position for him as a mining engineer. Because he could not work underground, the respondent accepted a surface position with South 32 well below his qualifications and skill level. 4. From 2016 until the hearing, he was employed as a control room operator at the Appin and West Cliff Mines, two other mines owned by South 32. He has been commended for his work and has managed dangerous incidents. 5. The respondent continues to have pain, discomfort and stiffness in his left foot, and must take medication or use heat packs to alleviate pain. 6. At the time of the hearing, the respondent was living independently, and does not require aids or other assistance. He can walk on even ground for at least 1 km before his foot becomes sore. He can drive a car for an hour or more without pain or restriction. He attends the gym, but avoids exercises that would cause foot pain. 7. Domestic chores are manageable, but the respondent must break them down into smaller tasks to avoid overstraining his foot.

Findings on the respondent's injuries and work capacity

The primary judge made the following findings about the respondent's injuries and work capacity: [111] In summary, I am well satisfied that the [respondent] has sustained a significant injury which has resulted in permanent disability with ongoing pain and discomfort. [112] He has difficulty with prolonged standing, walking and sitting. He is unable to run or participate in sport such as soccer or touch football which require running. He has difficulty walking over rough or uneven ground and can only do so for a short distance with intermittent pain. He has an altered gait and needs to use a handrail when descending stairs. [113] The [respondent] is at risk of degenerative changes leading to the prospect of mid‑tarsal fusion surgery at some time in the future. [114] The [respondent] is permanently unfit to work underground in his chosen career as a Mining Engineer. However, the [respondent] is medically capable of undertaking sedentary work such as a control room operator aboveground at a coal mine. [115] The [respondent] is capable of undertaking a range of recreational activities such as travel, sight-seeing and attending the gym, but makes adjustments to these activities to minimise pain and discomfort. On occasion where that is not possible, the [respondent] will undertake such activities for short periods and put up with the pain and discomfort. [116] As his injuries have reached their permanent state, there is no improvement envisaged in the [respondent]'s ability to live his life as best he can.

Future employment of the respondent

The primary judge found that the respondent's future employment in his current role was not secure because of the likely future closure or restructuring of the Appin Mine or the other Illawarra coal mines operated by South 32.

Damages for future economic loss

The primary judge found that, because he cannot work underground, the respondent's chosen career as a mining engineer is not available to him. Nor is the path of promotion he had hoped to follow right up to the role of general manager of a mine.
His Honour accepted the respondent's case that his future employment in the underground coal mining industry in the Illawarra region was beset by uncertainty.
The primary judge found that, because of his injuries, the respondent would be significantly disadvantaged if there was a downturn in the mining industry, or if "one or more" of the Illawarra coal mines closed. He found that the respondent would take longer to obtain employment than a comparable uninjured colleague.
The primary judge found it "more probable than not" that the respondent would have to retrain, because he cannot work as a mining engineer. He found, on evidence from a Mr Craig Martin and Mr Sebastian Bass, that the shortest period required for the respondent to retrain as a different type of engineer would be one to two years; in another discipline, three years.
The primary judge also found that the respondent will likely require surgery in the future to fuse the tarsal bones in his foot; three months "or so" of recuperation leave would be required, followed by a gradual return to work.
Whilst the respondent's employment future involved a degree of uncertainty, the primary judge held it was appropriate to award a "buffer" sum. He found that: 1. The respondent was 33 at the time of the hearing; he had a working life of at least another 34 years to age 67. 2. Because of the uncertain future of Illawarra mining together with the respondent's injury, about 15% of his future working period would be interrupted. 3. During that period of interruption, it was reasonable to estimate an annual loss of about $100,000, allowing for time off for recuperation. 4. A complete loss of income for five years (a little less than 15% of the respondent's remaining work years) would represent a $500,000 loss, or after the usual 15% discount, $425,000. 5. Taking into account uncertainties about when the loss would emerge, the primary judge found that a reasonable buffer sum was $350,000. 6. His Honour also awarded an additional 12% ($42,000) to reflect lost superannuation, factoring in expected future rises in the Superannuation Guarantee Charge.

Non-economic loss

The respondent submitted his case was 45% of the most extreme case; the appellant, 35%. The primary judge favoured the respondent's figure, noting the permanent effects the rockfall and injuries have had on the respondent's life, effects which will be with him for "many, many years to come".
Accordingly, the primary judge awarded 45% of the sum the parties agreed would reflect the most extreme case. Damages for non-economic loss of $174,758 were awarded.

Future surgery

The appellant's expert, Dr Marsh, estimated future surgery costs of $15,000. Dr Cadden, in one of his consultations with the respondent, estimated $10,000.
The primary judge awarded $7500 for future surgery costs, allowing for the fact the surgery may not take place until some date in the future.

Additional medical costs

The respondent estimated $56,000 in costs for additional GP visits associated with his surgery and orthotic treatment. The appellant estimated $6,500.
The primary judge found both estimates to be "extreme" and instead, on a "global estimate basis", awarded $30,000 for future medical costs.

Future domestic assistance

The parties' occupational therapist experts disagreed about the need for future domestic assistance. Ms Walcot, called by the appellant, saw little or no need for future domestic assistance. Ms Lucas, called by the respondent, thought assistance with domestic tasks would be needed.
Ms Walcot's report reasoned that the respondent could mitigate his loss by living within his physical capacities: 1. The respondent was managing well in his current rented home. If he wished to purchase a property, he should buy one appropriate to his physical capacity. For example, he should not buy a house with an excessively large garden which would be beyond his ability to attend to; 2. The respondent should rely on family members or cohabitants to undertake work beyond his capacity, rather than employing domestic assistants; for example, he should rely on relatives to clean bathrooms.
The primary judge rejected Ms Walcot's approach. He found: [171] In my view, where a plaintiff is injured and the plaintiff's injuries and disabilities produce a need for assistance in a domestic context, then the plaintiff is entitled to be compensated for the cost of obtaining that assistance in the future. It is not reasonable to expect that a plaintiff would diminish their own lifestyle ambitions, which were in any event reasonable, to take account of their disabilities. Rather, the proper approach is to provide the cost of the necessary assistance to the plaintiff to allow him to enjoy what would otherwise be a reasonable future life.
The primary judge preferred Ms Lucas' approach but applied various discounts to the figures she proposed.
The primary judge made the following awards: 1. $15,000 for past domestic assistance, to correct for an "overestimate" in Ms Lucas' figure; 2. $200,000 for future domestic assistance. The primary judge accepted that, if Ms Lucas' predictions came to pass, $300,000 would be appropriate. Given the uncertainty of predictions about future matters, an award of $200,000 was appropriate.
Various other minor awards of damages were also made by the primary judge which are not subject of the appeal.

Grounds of appeal

Whilst there are 12 grounds of appeal, grounds 10, 11 and 12 which related to costs were not pressed and need not be addressed further. The remaining nine grounds were: 1 The Primary Judge erred in finding that the respondent's current employment was at risk and lacked long term viability due to alterations in mining at the Dendrobium Mine when the evidence did not establish that the mine would be closing in July 2023. 2 The Primary Judge erred in evaluating the evidence before him and making findings as to the future of the Dendrobium Mine and the respondent's position as a control room operator for which he was remunerated beyond the maximum allowable under section 1511 of the Workers Compensation Act, 1987 (NSW). 3 The Primary Judge erred in awarding a buffer for future economic loss. 4 The Primary Judge erred in failing to find that the respondent's post injury recreational and social activities demonstrated that the respondent retained a significant earning capacity. 5 The Primary Judge erred in an award for Non-Economic Loss of 45% of a most extreme case when the award should have been no more than 35%. 6 The Primary Judge erred in determining the extent to which the respondent's injuries and disabilities as demonstrated by the evidence warranted the damages awarded under the heads of damage awarded. 7 The Primary Judge erred in making an award for Future Domestic Care and Assistance which was excessive, given the evidence demonstrating that the respondent had significant functionality. 8 The Primary Judge erred in finding that it was contrary to authority to have regard to the respondent's limited and finite disabilities when buying a home in the future such that extensive outdoor lawnmowing and garden maintenance was required. 9 The Primary judge erred in finding that the appellant through its Senior Counsel did not make any submissions adverse to the respondent's credit.

Consideration

The appellant dealt with its grounds of appeal in three groups. It is convenient to adopt the same approach: 1. Grounds five, six and nine: which each related to the extent to which the respondent suffered injury to his left ankle and the extent of ongoing disability, relevant to non-economic loss and future expenses; 2. Grounds one, two, three and four: which each related to whether or not the respondent established that Appin Mine would cease production and close before the end of the respondent's working life; 3. Grounds seven and eight: which each related to whether the respondent was overcompensated for future domestic assistance and out of pocket expenses for surgery.

Legal principles of modified common law damages

No challenge was made to the identification of the relevant legal principles by the primary judge for assessing common law damages as modified by the Workers Compensation Act 1987 (NSW): 1. the Workers Compensation Act does not affect any liability in respect of an injury to a worker that exists independently of the Act, except to the extent that the Act expressly provides: s 151; 2. Division 3 of Part 5 of the Workers Compensation Act applies to an award of damages in respect of an injury to a worker being an injury caused by the negligence or other tort of the workers employer: s 151E; 3. the only damages which can be awarded for future economic loss are damages "due to the deprivation or impairment of earning capacity": s 151G(1)(b); 4. no damages can be awarded unless the injury has resulted in a degree of permanent impairment of at least 15%: s 151H(1); 5. in awarding damages, the Court is to disregard any amount by which the net weekly earnings of the plaintiff exceed the maximum weekly compensation payments under s 34 of the Workers Compensation Act: s 151I(1).
In Medlin v State Government Insurance Commission (1995) 182 CLR 1; [1995] HCA 5, McHugh J gave some guidance on assessing damages for loss of earning capacity. The primary judge cited McHugh J's caution against the "natural tendency… to compare the plaintiff's pre-accident and post-accident earnings" and "to assume that if pre-accident and post-accident incomes are comparable, no loss has occurred". The primary judge found that the correct approach was to determine whether, as a result of the accident, the plaintiff has been rendered less capable of earning income. No challenge was advanced on this appeal to this conclusion.
In relation to dealing with future events, the primary judge cited Malec v JC Hutton Pty Ltd (1990) 169 CLR 638; [1990] HCA 20 where, at 643, Deane, Gaudron and McHugh JJ said: … in the case of an event which it is alleged would or would not have occurred, or might or might not yet occur, the approach of the court is different. The future may be predicted and the hypothetical may be conjectured. … Thus the court assesses the degree of probability that an event would have occurred, or might occur, and adjusts its award of damages to reflect the degree of probability. The adjustment may increase or decrease the amount of damages otherwise to be awarded. … The approach is the same whether it is alleged that the event would have occurred before or might occur after the assessment of damages takes place.
The parties accepted at trial and on appeal that, under the Workers Compensation Act, the primary judge was entitled to award damages for future economic loss by way of a "buffer": Penrith City Council v Parks [2004] NSWCA 201.

Legal principles governing this appeal

The appellant accepted that it must demonstrate House v The King error to successfully challenge the primary judge's broad evaluative decision to award damages in relation to future events. Identifying precisely which House v The King error the appellant relied upon proved elusive. Perhaps the closest the appellant came to identifying such a case was the submission that the primary judge made "a wholly erroneous estimate of the damage suffered", citing Moran v McMahon (1985) 3 NSWLR 700 at 718 and 723 per Priestley JA (Kirby P and McHugh JA agreeing). The appellant accepted, however, that the respondent suffered a "significant injury" which has left him with discomfort and an altered gait.
A primary judge's assessment of damage is not too readily reviewed on appeal, since it involves "questions of fact and degree, and matters of opinion, impression, speculation, and estimation, calling for the exercise of common sense and judgment": Dell v Dalton (1991) 23 NSWLR 528 at 532. As the High Court explained in Queensland v Masson [2020] HCA 28; (2020) 94 ALJR 785, this Court is required to assess all of the evidence relevant on an issue, making appropriate allowance for the advantage of the trial judge. The appellant accepted that the restraints on appellate review of fact finding identified in Warren v Coombes (1979) 142 CLR 531 at 551; [1979] HCA 9 and Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [28] applied.

Grounds five, six and nine: The extent of injury and disability

The essence of each of grounds five (45% vs 35% of a most extreme case of non-economic loss), six (alleged error in finding the extent of the respondent's injuries and disabilities) and nine (alleged error in finding that no submissions were made about the respondent's credit) is the appellant's complaint that the primary judge erred in his assessment of the extent to which the respondent suffered injury to his left ankle and the extent of ongoing disability. The appellant described the challenge to the conclusions of the trial judge on these issues as "the true area of contest on the appeal".

The photographic evidence of the respondent's holidays

At the heart of this part of the appellant's case was evidence, including photographs, of the respondent's social and travel activities following his injury, including evidence of bungee jumping, glacier walks, walking on soft sand, walking across uneven ground, wearing fins while snorkelling, walking up stairs, and riding a bicycle in Vancouver. In the appellant's submission, "[t]he aggregation of the photographs and the activities the Respondent agreed he undertook on the occasions shown in the photographs fall comfortably within the description of 'incontrovertible facts' or 'compelling inferences' spoken of in Fox v Percy".
The appellant submitted that, on the evidence, the respondent's enjoyment of life has not been diminished. It followed, the appellant contended, that the respondent's case should be assessed at no more than 35% of the most extreme case. It was an "appealable error" for the primary judge to instead evaluate a 45% disability. If the appropriate figure was 35%, $133,992.50 should be awarded.
The appellant relied heavily on the number of overseas trips the respondent had taken since 2016. The primary judge, however, made the following unchallenged findings of fact about those trips: 1. Most of the trips were organised tours, which involved some amount of walking, including over uneven surfaces, but usually only short distances. 2. On one trip, to Franz Josef Glacier in New Zealand, the respondent walked across ice and snow wearing crampons for about 10 minutes. He did so with "extreme difficulty", preferring to take part and put up with the pain than to "stay in my hotel room" for two days. 3. On other occasions, the respondent walked a short distance (for about 20 minutes) at Machu Picchu and bungee jumped in New Zealand. The respondent gave evidence that he tolerated bungee jumping well. The primary judge found that the bungee jumping harness placed no particular strain on his left foot. 4. While travelling, the respondent put up with pain and inconvenience so that he could socialise and engage in the same activities as his peers.
The primary judge carefully considered and rejected the submission that the travel photographs revealed the respondent could "do more than he was prepared to admit". The appellant did not point to any specific error in the primary judge's reasoning, nor to any mistake of fact or principle. There was nothing glaringly improbable about the findings of the primary judge, based as they were principally on his Honour's assessment of the evidence of the respondent. The appellant's challenge based on holiday photographs, which was at the heart of grounds five, six and nine of the appeal, fails.
The primary judge did not err in concluding that the respondent had suffered reduced enjoyment of life as a consequence of his injury. The appellant's attack on the primary judge's conclusion was inconsistent with the evidence below, which the primary judge accepted and was entitled to accept. The appellant did not demonstrate error, let alone House v The King error, in the primary judge's conclusion.

The medical evidence

In advancing grounds five and six of its appeal, the appellant relied on certain conclusions which it submitted the primary judge should have drawn from the medical evidence. In particular, the appellant relied upon the report of Dr Cadden, the respondent's original treating orthopaedic surgeon: It has been a year since [the respondent's] injury. He has noticed that there has been improvement to his foot during that time, but he still has limitations. The swelling is much less. If he does too much on the foot he will still get an ache and discomfort both through the mid-foot and medial side of his left ankle. He has tried doing 10km walks on the treadmill which would be part of his duties underground, but had issues with discomfort several days afterwards. On examination the ankle is stable. There is only mild swelling to the foot. There is not pitting oedema. There is no pain with midfoot rotation or pressure through the midfoot region. Given the crush injury to his foot he may always have some form of discomfort and stiffness with the joints. This may limit him being able to return to full duties underground. He may get further improvement over the next 6 months, as he is seeing some improvement at the moment. It is only at that stage that determination can be made as to whether he will [be] fit [for] the duties such as carrying 18 kg or walking for up to 15km underground.
The respondent's last consultation with Dr Cadden was on 14 April 2015, 21 months after the injury. At that time, Dr Cadden noted some improvement to the respondent's standing and walking tolerance, but the respondent had not returned to normal capacity. He noted that the respondent had tried to return to underground mining work but had pain in his foot which limited his capacity to do so.
The appellant relied heavily on the following conclusion in Dr Cadden's report: At this stage from his injury, there is a [likelihood] of ongoing discomfort and swelling to the foot with prolonged activity. This is likely to limit his ability to return to underground work. He is still keen to [continue] engineering work, and would be best considered for an above ground role. In the future there is a small potential for midfoot joint degenerative change. This may not occur for several years. This would be secondary to the crush injury.
During this consultation, Dr Cadden told the respondent that, given the time that had passed since the accident, no further improvement was likely. The soft tissue damage to the foot meant that arthritic complications were "highly probable".
When told that a 15 km "egress walk" was a precondition for the respondent's return to underground work, Dr Cadden said. If this Egress Walk is a requirement to be a Mining Engineer then you're never going to be able to work as a Mining Engineer now or in the future.
The appellant emphasised in its submissions that the respondent had not sought ongoing treatment from Dr Cadden after 2015, and, it was submitted, that this showed his disability was less severe than the primary judge had found.
I do not think any error was shown in the way the primary judge addressed the medical evidence, including that of Dr Cadden. Whilst it is correct that the respondent had not seen Dr Cadden since 2015, that fact does not ultimately avail the appellant. The respondent did continue to seek treatment for his injuries after 2015, mostly from his podiatrist Mr MacFarlane, who provided him with pain relief. No error in any conclusion reached by the primary judge was shown in his treatment of Dr Cadden's evidence. Further, Dr Cadden did not examine the respondent again after 2015 for the purposes of giving evidence at the trial and did not take part in the conclave of expert orthopaedic surgeons. The experts who did, Dr James Bodel, Dr Nigel Marsh and Dr Roger Rowe, prepared a joint report which his Honour carefully considered. That joint report recorded the following points of agreement. QUESTION 5: What are the [respondent's] permanent continuing disabilities as a result of the accident on 24 June 2013? ANSWER TO QUESTION 5: The experts agree that the [respondent] has an intermittent dull ache in his left foot and difficulty with prolonged standing, walking and sitting. The [respondent] is unable to run, unable to resume soccer or touch football, has difficulty walking on uneven ground, needs to use a handrail when descending stairs and has scarring and a loss of sensation on the dorsum of his left foot. … QUESTION 9: Is there a risk of degenerative changes developing as a result of his injuries? If so, to what part of the body would you expect to find such changes by now? ANSWER TO QUESTION 9: The experts agree that there is a risk of degenerative changes developing as a result of the [respondent]'s injuries. The experts would expect to see such degenerative changes in the midtarsal or tarsometatarsal region of the [respondent]'s left foot. QUESTION 10: Would the speed of development of such changes be decreased by the [respondent] engaging in restricted activity in his work? In his domestic life? And similarly, would the speed be increased by activity? ANSWER TO QUESTION 10: The experts agree that the speed of development of degenerative change would not be altered by restricting the [respondent]'s work or domestic activities. QUESTION 11: Is the speed of the development of such degenerative changes developing uncertain? ANSWER TO QUESTION 11: The experts agree that the speed of the development of any degenerative changes is uncertain. QUESTION 12: What ongoing treatment, if any, does the [respondent] require as a result of the accident on 24 June 2013? ANSWER TO QUESTION 12: The experts agree that ongoing treatment will probably include the periodic use of analgesic medication and perhaps orthotics. The experts agree that in the long term the [respondent] may require midtarsal fusion surgery. QUESTION 13: What limitations should be placed on the [respondent's] current capacity to work? ANSWER TO QUESTION 13: The experts agree that the [respondent] is permanently unfit for underground work or work on any irregular ground. The experts consider the [respondent] to be fit for sedentary or semi-sedentary work, such as his current job. The experts agree that all future work should exclude extensive walking on rough ground; heavy lifting, pushing, pulling or carrying; the need for agility; extensive stairs and any ladders. QUESTION 14: Is it likely that the [respondent] should be able to remain in his current or similar work until normal retirement age around 67 years? ANSWER TO QUESTION 14: The experts agree that the [respondent] should be able to remain in his current or similar work until normal retirement age, around 67 years.
The joint experts' answers to questions 5, 9 and 12 are strongly supportive of the conclusions of the primary judge and inconsistent with the appellant's case that the primary judge erred at all, let alone in the House v The King sense. No House v The King error has been shown in the primary judge's treatment of medical evidence as it related to ground five and six.

Characterisation of the appellant's Senior Counsel's cross-examination

As to ground nine, the appellant submitted that the primary judge unfairly characterised the cross-examination of the appellant as not involving a challenge to credibility. In support of this submission, the appellant pointed to the cross-examination of the respondent, where he was taken through photographs I have described above which the appellant submitted were "inconsistent with the significant level of discomfort and disability he complained of".
The primary judge carefully evaluated all of the evidence, including the photographs and evidence of overseas holidays to which the appellant referred. It is correct, as the appellant submitted, that challenges to acceptance of the respondent's evidence were advanced in final submissions by the appellant. His Honour dealt with those challenges on their merits and not by reference to any preclusionary principle based on the absence of cross-examination. I would reject ground nine.

Conclusion on grounds five, six and nine

Ground five attacked the primary judge's determination that 45% of a most extreme case rather than 35% should be awarded. His Honour's conclusion was a broad evaluative decision. In reaching his decision, his Honour carefully took into account the evidence on this subject from the respondent and all relevant medical evidence. No House v The King error was shown in this conclusion. Far from demonstrating error, having independently reviewed the evidence, I find the conclusion of the primary judge was correct. Ground six, which attacked the primary judge's findings about the extent to which the respondent's injuries and disabilities as demonstrated by the evidence warranted the damages awarded, similarly fails. The primary judge carefully considered the extent of the respondent's injuries and disabilities demonstrated by the evidence and awarded damages based on those findings. No House v The King error was shown in these conclusions. Ground nine, as I have said, took the matter no further from the appellant's position.
I would reject grounds five, six and nine of the notice of appeal.

Grounds one, two, three and four: Whether or not the respondent established that Appin Mine would cease production and close before the end of the respondent's working life

The appellant challenged the finding that the respondent's future earning capacity was at risk because of the "finite future" of the coal industry and the Appin Mine. It made the following submissions: 1. In some cases, it is an error to treat as a future certainty something the evidence, when evaluated, reveals to be only a possibility: Kallouf v Middis [2008] NSWCA 61 at [49]: In some cases, it would be an error in treating as certain the fact that a plaintiff would lose wages for a period of years from the date of trial. Where incapacity is established as at the date of trial, what is to be evaluated will be the extent of the possibility that the plaintiff may not work in the future or may lose time from work and determine the allowance of proper compensation in respect of that possibility. That evaluation will depend upon the evidence. Where there is no evidence to support a conclusion that, as a matter of certainty, an injured plaintiff would not earn monies from employment for a number of years post trial, then such a finding would involve an error of principle. 1. The evidence of loss of future earning capacity must be precise, citing Avopiling Pty Ltd v Bosevski (2018) 98 NSWLR 171; [2018] NSWCA 146 at [94]. The onus is on the plaintiff to prove loss of future earnings: Currie v Dempsey [1967] 69 SR (NSW) 116 at 125 per Walsh JA. In the appellant's submission, the respondent's evidence failed to discharge his onus. It was submitted to be "essentially conjecture" that the Appin Mine would close. 2. On the evidence of Appin's former general manager, Mr Craig Manz (which I discuss in detail below), the Appin Mine would become more profitable after its restructure, extending longevity. The appellant submitted that Mr Manz's evidence should be accepted, because he had "direct knowledge" of the facts. It also submitted that there was no basis to believe Appin's leases would not be renewed as they expire.
The appellant's primary position was that no award for future economic loss should be made. Its secondary position was that the buffer awarded did not rightly reflect the future loss demonstrated. No more than $50,000 should be awarded.
The primary judge made the following unchallenged findings of fact: 1. the current coal lease at the Appin Mine expires in January 2034; 2. mining leases associated with the Appin Mine will expire on various dates respectively on 2023, 2033, 2035 and 2037; 3. the lease for the Dendrobium Mine has expired or else shortly will expire, and an extension of the lease has been refused; 4. South 32's "Our Approach to Climate Change" document suggests that in order for the Illawarra coal mines to continue, significant changes to their operations will be needed; 5. in early 2020, South 32 announced that the Appin Mine was to be reduced from operating two longwalls to one with effect from July 2023, which change has led to significant staff redundancies; and 6. the Appin Mine has high overhead costs because of its high methane and water processing costs, its reliance on trucking contractors and its three surface and mine sites.
In addition, the respondent gave unchallenged evidence: 1. about the future of the Appin Mine; 2. about the reduction of staff at the mine, including staff in his position as a control room operator; 3. that the transition from a twin longwall block operation to a single longwall would probably reduce the number of control room operators from eight to four; and 4. about why he expected to lose his position as a control room operator.
Mr Christopher Rogers, another control room operator employed at South 32, gave unchallenged evidence that there would be a reduction in control room operators at Appin Mine.
The appellant led no evidence from anyone at South 32 about the respondent's future employment regardless of the fate of its Illawarra mining operations. Its main evidence on the future of the mines came from Mr Craig Manz, who was the general manager of the Appin Mine from 2018 to 2020. Mr Manz gave the following evidence: 1. he is currently employed by another mining company as head of underground operations in a Queensland mine; 2. he worked for South 32 as Appin Mine manager from June 2018 to June 2020, and before that for four years at Dendrobium; 3. he has had no involvement with South 32 or the Illawarra mining area since leaving his role there in June 2020; 4. Appin Mine had a mine life of 25 years or more - by which he meant there was 25 years' worth of coal available to be mined; 5. in 2023, operations at the Appin Mine would downsize from a two longwall operation to a one longwall operation; staff would also be reduced. This would necessarily reduce coal output; 6. a single longwall operation may produce more "sustainable cash for the business" because of a significant reduction in labour and machinery costs; 7. without significant changes to Appin's operations, it would remain a marginal business generating only small positive cash flow, hence the need to significantly change the operation; and 8. the planned reduction in staff would not reduce the number of control room operators.
The primary judge carefully considered the evidence of Mr Manz relied upon by the appellant. That evidence is not inconsistent with any of the primary judge's ultimate conclusions. Mr Manz's evidence was limited to describing a planned 2023 restructure of the mine, which would reduce its size and operating costs. The primary judge found that Mr Manz was "personally persuaded" by the downsizing plan and its prospects of extending the mine's financial life. However, the primary judge went on to find that the plan faced uncertainties including the future price of coal, South 32's climate change response and its customers' climate change response. The primary judge found that management might make future changes to the plans.
Although the appellant emphasised Mr Manz's evidence, at its the highest it proved no more than that Mr Manz believed that the 2023 reorganisation would improve Appin mine's financial efficiency. The evidence shed no light on the questions of whether the mine was likely to continue following expiry of the lease or whether there would likely be future reorganisations affecting the security of the respondent's employment. In addition, at the time of the hearing, Mr Manz had not been employed by South 32 or in the Illawarra region for over a year. He was in no position to give evidence about the future operations of South 32's mines. No error, let alone House v The King error, was shown in the way the primary judge addressed evidence relevant to the likely closure of the Appin Mine, including Mr Manz's evidence.
His Honour found that the Appin Mine was unlikely to operate past the end of the existing lease in 2034 and the mine may well become unviable before 2034: [135] The facts which I have found above, together with the uncertainties referred to, which together may have a possible adverse effect on the Illawarra mining operations lead me to conclude that I am not satisfied on the probabilities that the Appin Mine will continue to operate past the end of the existing lease in 2034, and further that it may well cease operations before then because it is not economically viable.
As I have said, the appellant relied upon Avopiling as providing support for its submission that the primary judge fell into error. Avopiling is not authority for the proposition that claims for future economic loss require a precise "anchor". In Avopiling at [94], I was addressing past economic loss. As to future economic loss I said: [101] The primary judge correctly considered the possibilities and probabilities in relation to Mr Bosevski's future earning capacity as required by Malec v JC Hutton. Some matters pointed in favour of a greater deduction and others pointed to a lesser deduction. The primary judge identified a deduction of 15 per cent as appropriate. This was a broad evaluative decision and no error has been shown by Avopiling in that evaluative decision.
For essentially the same reasons that the challenge to future earning capacity failed in Avopiling, it fails here. The primary judge correctly considered the possibilities and probabilities, in relation to the future of the mine and its effects on the respondent's future earning capacity as required by Malec v JC Hutton. Some matters pointed in favour of a greater deduction and others pointed to a lesser deduction. This was a broad evaluative decision and no error has been shown by the appellant in that evaluative decision.
I would reject grounds one, two, three and four.

Grounds seven and eight: Damages for future surgery and future domestic assistance

Future domestic assistance

The area of contention was whether the respondent should be compensated for domestic assistance he might need if he moved into a home he does not own but aspires to own. In written submissions (but not in oral submissions) the appellant submitted that s 151L of the Workers Compensation Act requires plaintiffs to mitigate their loss. It was submitted that it was not open to the respondent to recover by himself creating a loss that does not exist.
I would reject the appellant's submission that s 151L of the Workers Compensation Act was here engaged for two reasons. First, it was not pleaded below. Secondly, when the primary judge raised s 151L with the appellant, Senior Counsel for the appellant agreed it was irrelevant: HIS HONOUR: Well then, the issue about future need, in a hypothetical house, is not a litigation issue. It's simply weather [sic], if such a need arises, it is reasonable to require the defendant to pay for it. MCCULLOCH: I agree with that, your Honour. Yes. HIS HONOUR: So, 151L in this case is, frankly irrelevant, isn't it? You don't say, this man hasn't done anything to date, to mitigate his loss. MCCULLOCH: No, I agree, your Honour. (emphasis added)
As to the suggestion that the primary judge erred in awarding damages for future domestic assistance the respondent would need if he moved into a home he does not yet own, the appellant faces an insurmountable factual problem. Contrary to the appellant's submission that ownership of a three-bedroom home raised a hypothetical issue, after suffering his injury the respondent had actually bought a three-bedroom house, which he later sold because his injury made the upkeep of the property unmanageable. The respondent gave the following unchallenged evidence: Q. Did you move out of home and into a property that you bought that did have a lawn on it? A. I did. Q. Did you mow the lawn there? A. No, my father would come over and mow the lawns. Q. Did you sell that property? A. I did. Q. Why? A. Because it was too hard to take care of. It was a three-bedroom place with a lawn. My mother would come and clean, my father would come and mow the lawns, so then I sold it and moved back to parents'. … Q. When did you buy the house subsequent to your injury? A. I bought it off the plan in 2014, and then it was ready sometime in 2015. Q. How long did you live there for? A. I moved out for a few months. Q. Then as you've told us, you've moved back home for a little while and then went into your apartment. A. Yes, correct. Q. When did you go into the apartment? A. February 2017.
The respondent's desire to live in a three-bedroom house was not a hypothetical aspiration. Following his injury, the respondent had purchased a three-bedroom home which, because of his injury, he was forced to sell. There was thus every reason for the primary judge to conclude that, if appropriate domestic assistance was available, the respondent would again move into a three-bedroom home. On this basis, the primary judge was entitled to reject the evidence of Ms Walcot, the occupational therapist relied upon by the appellant, who assumed the respondent would live in a home unit forever, and accept the evidence of Ms Lucas, the occupational therapist advanced by the respondent, who assumed that the respondent would move to a three-bedroom house as soon as he was able to afford appropriate domestic assistance. Acceptance of Ms Lucas and rejection of Ms Walcot, based on the unchallenged evidence of the respondent about his recent living arrangements was not an error, let alone a House v The King error.
No challenge, beyond those I have addressed, was advanced about the rates used for future domestic assistance or the number of hours Ms Lucas identified as being required. His Honour in any event applied a considerable discount to his award for future domestic assistance in accordance with a Malec v JC Hutton approach. The respondent calculated that the effect of the primary judge's award was that four hours per week of domestic assistance for the remainder of the respondent's life was provided for. No error, let alone House v The King error, was shown in the approach of the primary judge to the award of future domestic assistance.

Future surgery and future out of pocket expenses

The appellant submitted that the likelihood of the respondent needing future surgery was lower than the primary judge seemed to accept. The appellant pointed to the following evidence: 1. Dr Cadden's report of his 14 April 2015 consultation with the respondent: "In the future there is a small potential for midfoot joint degenerative change. This may not occur for several years". 2. Dr Cadden's report dated 12 September 2016: "[The respondent] would only need surgery if there was a development of [degenerative] changes in the future. Fusion of the affected joints can be successful in alleviating pain". 3. Further, the appellant asserted that the respondent had not sought ongoing treatment after 2015, and that this indicated a low likelihood of future surgery.
The appellant also directed attention to expert orthopaedic surgeons' joint report, described at [52] above: "The experts agree that in the long term the [respondent] may require midtarsal fusion surgery". It was submitted that this conclusion, "may require", was an uncertain one.
The appellant's attack on the primary judge's award of these damages fails. I do not read the joint report as uncertain or unclear: "in the long term the [respondent] may require midtarsal fusion surgery." The primary judge was required to assess the probabilities and possibilities of that future event coming to pass and to make an award of damages today reflecting those future probabilities and possibilities. Further, the appellant submitted in writing before the primary judge that an award of $5000 should be made for future surgery. The primary judge awarded $7500 for that surgery. No error has been shown in the conclusion of the primary judge.
To the extent, which is unclear, that the appellant continued to press its objection to the award of $30,000 for future out of pocket expenses, the appellant's complaint should be rejected. His Honour took into account extensive likely future costs including orthotics, podiatry treatment, gymnasium visits, pain medication and probable future degeneration. No error has been shown in the primary judge's approach in awarding $30,000 for future out of pocket expenses.
I would reject grounds seven and eight.

Conclusion and orders

No complaint was made by the appellant about the correct identification of legal principles in the award of damages. The primary judge's findings of fact were not challenged. His Honour's conclusions based on those facts were well open to him. Having conducted an independent review of the evidence, no House v The King error in the broad evaluative decisions made by his Honour has been shown.
For the foregoing reasons I propose the following orders: 1. Appeal dismissed. 2. Appellant to pay the respondent's costs of the appeal.
ADAMSON JA: I agree with Payne JA.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 August 2023

Workers Compensation Act 1987(NSW)ss 34, 151, 151E, 151G, 151H, 151I, 151L, Pt

Uniform Civil Procedure Rules 2005(NSW)r 51.36, r 51.36(2).

(2022) 109 NSWLR 468

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